Call for submissions to the UN SRVAW thematic report on rape as a grave and systematic human rights violation and gender-based violence against women
The United Nations Special Rapporteur on violence against women, its causes and consequences, Ms. Dubravka Šimonović, in her thematic report to be presented to the UN General Assembly in September 2020 will address States’ responsibility to criminalize and prosecute rape as a grave and systematic human rights violation and gender based violence against women, in line with international human rights standards.
Rape has been recognized as crime of sexual violence, a war crime, a crime against humanity and/or genocide in specific circumstances and it has been criminalized and prosecuted in a large number of States and jurisdictions but in different ways, that is: rape has different definitions (force /consent), different scopes (women, men, marital rape, all types of penetrations), with different aggravating and mitigating circumstances, with different sanctions, and with different statutes of limitations for its prosecution. While victims of rape can also be men and boys, it predominantly affects women and as such, falls under the definition of gender based violence against women as act of violence against women.
Globally, we know that rape is frequently not reported, and if reported seldom prosecuted with vigor; if prosecuted, results in very low numbers of convictions (attrition rates are high) and all this results in impunity for the majority of perpetrators; women thereby lose faith in the criminal system, do not report it, and the result is the mixture of low reporting rates and a culture of impunity and rape becomes normalized.
In general, there is lack of data on rape reporting, prosecution and conviction including on the relationship(s) between the victim and the perpetrator.
The international human rights framework on rape as a human rights violation and gender-based violence against women (GBVAW) has been significantly improved, but those improved standards are not fully incorporated into legislation and practice at the national level.
The aim of this report is to collect as much information as possible on the criminalization and prosecution of rape, and to thereby support and encourage a process of harmonization of national criminal laws and systems and practice with international standards on rape and sexual violence in both peacetime and during conflicts.
In her report, the Special Rapporteur intends to provide recommendations to States and other stakeholders on key international human rights standards that should be integrated in national criminal justice responses in order to harmonize them with accepted international standards; to provide access to justice and support for victims of rape; to break the cycle of impunity; and to prosecute perpetrators, ensuring that they are not protected by hidden domestic norms that are still part of criminal law or criminal procedure.
To that end, the Special Rapporteur on violence against women would like to invite all States, National Human Rights Institutions, civil society actors, international organisations, academics and other stakeholders from all countries to send responses to the questionnaire below.
(Due to limited time and resources, please send information including provision of the criminal law in English. If sent in other languages, translation services are not available and it could not be considered at this stage of information gathering).
All submissions should be sent to email@example.com by 20 May 2020. You are kindly requested to indicate if you DO NOT wish your submission to be made public.
Please indicate who is providing the response, along with contact details.
Questionnaire on criminalization and prosecution of rape
Definition and scope of criminal law provisions
- Please provide information on criminal law provision/s on rape (or analogous forms of serious sexual violence for those jurisdictions that do not have a rape classification) by providing full translated transcripts of the relevant articles of the Criminal code and the Criminal procedure code.
- Based on the wording of those provisions, is the provided definition of rape:
- Gender specific, covering women only YES/NO
- Gender neutral, covering all persons YES/NO
- Based on the lack of consent of victim YES/ NO
- Based on the use of force or threat YES/ NO
- Some combination of the above. YES / NO
- Does it cover only vaginal rape? YES /NO
- Does it cover all forms of penetration? YES/NO. If yes, please specify.
- Is marital rape in this provision explicitly included? YES / NO
- Is the law silent on marital rape? YES/NO
- Is marital rape covered in the general provisions or by legal precedent even if it is not explicitly included? YES/NO
- Is marital rape excluded in the provisions, or is marital rape not considered as a crime? YES /NO
- Are there any provisions excluding criminalization of the perpetrator if the victim and alleged perpetrator live together in a sexual relationship/have a sexual relationship/had a sexual relationship? If so, please submit it.
- What is the legal age for sexual consent?
- Are there provisions that differentiate for sexual activity between peers? If so, please provide them.
- Provide information on criminal sanctions prescribed and length/duration of such criminal sanctions for criminalized forms of rape.
- What does the legislation in your country provide in terms of reparation to the victim of rape and/or sexual violence after conviction of the perpetrator?
Aggravating and mitigating circumstances
- Does the law foresee aggravating circumstances when sentencing rape cases? If so, what are they?
- Is rape by more than one perpetrator an aggravating circumstance? YES/NO
- Is rape of a particularly vulnerable individual an aggravating circumstance, or the imbalance of power between alleged perpetrator and victims? (for example, doctor/patient; teacher/student; age difference) YES/NO
- Is rape by spouse or intimate partner an aggravating circumstance?
- Does the law foresee mitigating circumstances for the purposes of punishment? YES/NO If yes, please specify.
- Is reconciliation between the victim and the perpetrator allowed as part of a legal response? YES/NO If so, at what stage and what are the consequences?
- Regardless of the law, is reconciliation permitted in practice? YES/NO and what is the practice in this regard?
- Is there any provision in the criminal code that allows for the non-prosecution of perpetrator? YES/NO If yes, please specify.
- if the perpetrator marries the victim of rape? YES/NO
- if the perpetrator loses his “socially dangerous” character or reconciles with the victim? YES/NO
- Is rape reported to the police prosecuted ex officio (public prosecution)? YES/NO
- Is rape reported to the police prosecuted ex parte (private prosecution)? YES/NO
- Are plea bargain or “friendly settlement” of a case allowed in cases of rape of women? YES/NO
- Are plea bargain or “friendly settlement” of a case allowed in cases of rape of children? YES/NO
- Please provide information on the statute of limitations for prosecuting rape.
- Are there provisions allowing a child who was the victim of rape and to report it after reaching adulthood? YES/NO
- Are there mandatory requirements for proof of rape, such a medical evidence or the need for witnesses? YES/NO If yes, please specify.
- Are there rape shield provisions aimed at preventing judges and defense lawyers from exposing a woman’s sexual history during trial? YES/NO
- Are there procedural criminal law provisions aimed to avoid re-victimizations during the prosecution and court hearings? YES/NO. If yes, please specify.
War and/or conflict
- Is rape criminalized as a war crime or crime against humanity? YES/NO
- Is there a statute of limitations for prosecuting rape in war or in conflict contexts? YES/NO
- Is there explicit provisions excluding statutes of limitation for rape committed during war and armed conflict? YES/NO
- Has the Rome Statute of the International Criminal Court (ICC) been ratified? YES/NO
- Please provide data on the number of cases of rape that were reported, prosecuted and sanctioned, for the past two to five years.
- Please explain any particular and additional barriers to the reporting and prosecution of rape and to the accountability of perpetrators in your legal and social context not covered by the above.